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Required Harassment Policy and Training Q&A

30 July 2010

Interestingly, most employers are not required to have a written harassment policy in place or to train employees about harassment. But, if you do not, you could expose your organization to a very expensive harassment lawsuit.

Q:Are we required to have a written policy on harassment and if so, do we have to provide harassment training to our employees? A:Even though harassment, and particularly sexual harassment, has been a hot-button topic in the workplace for the last 25 years, no federal law specifically requires you to have an anti-harassment policy or training, though a few state laws do. Still, a specific policy prohibiting harassment and providing training to your employees will help you create a positive work environment and limit your liability for potential harassment.

(Download free Productive Work Environment model policy including sexual harassment, HR best practices, and legal background.)

You should have a written harassment policy for two primary reasons. First, a strong and consistently enforced policy against sexual and other forms of harassment shows your commitment to, and promotes, a productive work environment. Harassment that goes unchecked has the very real potential to destabilize your operations through decreased morale and productivity and increased employee turnover.

Second, the policy can help prevent liability. Even though a formal written policy is not legally required by Title VII of the Civil Rights Act (the federal law prohibiting harassment as a form of discrimination), court decisions and guidances from the Equal Employment Opportunity Commission (EEOC) consistently show that employers can decrease their liability for hostile work environment harassment by maintaining and enforcing internal policies to prevent and deal with harassment. Decisions by the Supreme Court illustrate the importance of having an effective harassment policy and complaint procedures that include employee training. In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998), the Court determined that an employer may be able to defend itself from liability for harassment by a supervisor in certain cases if it has taken reasonable care to prevent and correct any harassing behavior. In particular, you must adopt a policy against harassment, have an effective complaint procedure, and take steps to ensure that employees are aware of their rights and obligations and are properly trained in harassment issues.

As noted above, a few states also do specifically require sexual harassment training. Some states, such as California and Connecticut, require harassment training only for supervisors. One state, Maine, requires that all new employees receive the training. And, Rhode Island requires employers with 50 or more employees to establish and disseminate a formal written sexual harassment policy. Accordingly, you should check with your state equal employment opportunity agency to determine potential coverage.

Clearly, if you do not implement a specific harassment policy and train your employees about the policy, you will have a difficult time defending harassment claims. To be effective, training should target not only employees but also supervisors who have the authority to hire, fire, or make other employment decisions. At a minimum, your harassment policy and training should include the following: 1. A statement that you condemn harassment of any kind, even if it is not explicitly prohibited by your policy or by law. The policy should prohibit not only sexual harassment but also harassment based on all protected classes, including race, color, sex, national origin, religion, disability, pregnancy, age, genetic information, and military status. 2. The definition of harassment, with particular attention paid to the legal definitions of sexual harassment, including quid pro quo and hostile work environment. 3. A description of prohibited conduct. 4. The consequences of violating your harassment policy and the types of behavior that may lead to immediate termination. 5. The use of your dispute resolution procedure for handling complaints. 6. Ways to report harassment combined with assurances that there will be no retaliation for filing complaints or making reports.

(Download free Productive Work Environment model policy including sexual harassment, HR best practices, and legal background.)

An obvious conclusion from the court cases and EEOC guidances is that harassment policies and training are not optional if you want to limit your liability. So, you can either treat a harassment policy and training as a necessary evil or turn it into an opportunity to enhance good employee relations. The latter approach makes the most sense since it both builds a positive work environment and a sound legal defense.

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